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Last week, the Cato Institute hosted a policy forum on teaching controversial subjects such as sex and religion in k-12 educational institutions. All of the panel members pointed out that schools needed to do a better job at improving student civic outcomes such as character skills and tolerance of others’ views; however, a couple of the speakers claimed that the issue is not a result of our traditional system of public schooling.

This assertion fails to recognize the scientific evidence and, more importantly, the clear logic of incentives.

While families have a diverse set of values and goals for their children, the political process regurgitates a uniform educational environment. Further, since children are forced to attend schools based on zip codes, the government perhaps rightfully protects various family values by avoiding controversial discussions altogether. After all, if public schools were teaching that evolution was not real, many parents would obviously be very upset.

Of course, it is not the fault of public school employees. If you or I were held accountable to standardized test scores, we would probably not allocate a lot of time towards fostering friendly debates on provocative topics. In fact, it would be a risk to do so if we taught in a state that had laws attempting to protect individual family values. It is completely rational that traditional public schools are not spending much time on controversial issues.

On the other hand, if families had the ability to opt into or out of schools based on their values and goals, the state would not need to protect them. In addition, if parents cared about civic skills such as citizenship and tolerance, they would be able to reward schools for improving the lives of their children. Further, schools would not have the perverse incentive to focus on standardized tests if they were accountable to parents instead of public officials.

The scientific evidence largely supports the theory. Dr. Patrick Wolf’s review of the evidence finds that school choice increases civic skills. Moreover, my forthcoming review of fourteen rigorous studies also shows that private school choice improves civic outcomes such as crime and tolerance.

We must not pretend that the scientific evidence is mixed on such an important topic. We also must not pretend that school systems have nothing to do with shaping skills that will impact children and societies for years to come. If we wish to live in a more tolerant society, we ought to listen to scientific evidence, clear logic, and the needs of all families.

Senator Ron Johnson, Chairman of the Senate Homeland Security and Government Affairs Committee, introduced a bill this month that would resolve a major concern for high-skilled temporary workers in the United States. It would allow them to change jobs, get promotions, or start businesses while waiting in line for permanent residency. It would also prevent their children who grew up in the country from being forced to leave if they reach adulthood before their parents become permanent residents. 

The legislation (S. 1040) would create a large number of temporary three-year work visas that would allow foreign workers, entrepreneurs, or investors to live and work in a state that sponsors them. States could sponsor people of all skill types and from any industry. They could renew their status if the state wanted to invite them back. Their employers could also sponsor them for permanent residency (“green cards”) under the existing immigration programs.

In some ways, the program has similar features to the H-1B visa, which is a three-year renewable work visa for high-skilled foreign workers sponsored by a U.S. employer. Employers also have the option of sponsoring H-1Bs for green cards, which allows workers to extend their H-1B status indefinitely until they receive a green card.

As I have written before, however, one problematic provision of the H-1B visa is that those workers whom employers sponsor for a green card cannot change jobs or even receive certain promotions without losing their place in the green card line. H-1Bs also cannot be self-employed or start their own businesses. Because the green card line has a century-long wait for certain workers due to the per-country limits, these rules effectively bind them to their employer and their current position indefinitely. It prevents them from contributing to the economy to their fullest potential.

Fortunately, S. 1040 would prevent this situation from developing under the state-sponsored visa and fix the H-1B. Sec. 3(c) would allow any foreign worker in the United States whose employer’s petition is approved to file an adjustment of status application to become a permanent resident. The application would remain pending until a green card became available, but during this time, the person shall “have a lawful status” and “following a biometric background check, be eligible for employment and travel authorization incident to such status.”

Employment authorization and status means that these workers could have full access to the labor market—change jobs or industries, get promotions or start new businesses. As an added bonus, it would eliminate another significant problem (that I’ve also written about). Under current law, H-1Bs can bring their spouses and minor children with them as they work in the United States. The benefit is limited to juvenile children, however, and even if the child grows up in the United States in H status, they are forced out or deported if they reach the age of 21 before their parent receives a green card.

S. 1040 would also allow workers to bring their children unless the state said otherwise. But if S. 1040 becomes law, it would prevent those children from being forced out. When a worker reaches the front of the green card line and files an adjustment of status application, current law “freezes” the age of any of their minor children for immigration purposes while the government reviews the application and approves their green card. This really only protects them against administrative delays, not the big wait for a green card to become available.

Under S. 1040, rather than waiting until they reach the front of the line to file the adjustment of status, they could file as soon as their employer’s petition for them is approved. Thus, if the child were 12 at the time the employer’s petition is approved, the child would not lose their status even if the parent fails to receive their green card for decades. The Table compares the two approaches. As you can see, S. 1040 basically moves step 6 under current law up to step 2, allowing them to immediately take advantage of the adjustment of status protections.

Table: Green Card Process for Temporary Workers Under Current Law vs. S. 1040

Current law S. 1040 1. Employer’s petition for guest worker to receive permanent residency (green card) is approved 1. Employer’s petition for guest worker to receive permanent residency (green card) is approved 2. Worker waits many years for a green card to become available due to the quotas 2. Worker applies to adjust status to a permanent resident 3. While waiting, worker cannot change jobs/accept certain promotions 3. While adjustment  is pending, worker may change jobs/children who reach 21 may stay 4. Worker’s children who reach 21 lose their status and must leave the country 4. Worker waits many years for a green card to become available due to the quotas 5. Worker applies to adjust status to a permanent resident after reaching the front of the line 5. Government approves adjustment of status and worker receives permanent residency 6. While adjustment is pending, worker may change jobs/children who reach 21 may stay   7. DHS approves adjustment of status and worker receives permanent residency  

These provisions will have a positive benefit on the economy. Harvard economist George Borjas has shown that the mobility of immigrants creates efficiency gains of $5 to $10 billion because they shift quickly to changes in the labor market. The entrepreneurship of immigrants also creates large productivity gains. Preventing the removal of the children would also benefit the economy. At the 2016 Intel Science Talent Search, the leading science competition for U.S. high school students, more than 80 percent of the finalists were children of H-1Bs. America should not push these workers away.

Thus, Senator Johnson’s bill will prove a benefit not only to foreign workers in the future, but also to current aspiring immigrants. Letting immigrants achieve their highest potential would have major economic gains for the country.  

Corporate tax reduction is at the center of the tax reform debate in 2017. While the United States has the highest statutory corporate tax rate in the OECD, some pundits claim that U.S. companies are not so hard done by because they pay low effective rates. Effective tax rates are calculated in various ways, but they generally measure actual taxes paid as a percent of the tax base.

Canadian tax scholar Jack Mintz has released new estimates of corporate tax rates in a Tax Foundation study. He calculates marginal effective tax rates, meaning the additional taxes paid on profits earned from a new investment. This is the rate that drives real investment decisions by corporations.

Mintz finds that the United States has the third highest marginal effective corporate tax rate among 34 OECD countries. The U.S. rate in 2017 is 34.8 percent, which compares to the OECD average rate of 19.2 percent. Only France and Japan had higher rates. Our NAFTA trading partners have rates around 20 percent, as shown in the figure.

Cato held a forum on Capitol Hill earlier this week to discuss tax reform. Ryan Borne described recent British corporate tax changes:

Since 2010, the U.K. has substantially reduced its headline corporation tax rate, from 28% to 19% today with a plan to reduce it to 17% by 2020. This forms part of a longer-term trend: the U.K. had a corporate income tax rate as high as 52 percent in 1980.

In 2013, the UK government dynamically scored this overall rate cut and looked at general equilibrium effects, and estimated that within 18 years somewhere between 45%-65% of lost receipts will have been recouped as a result of increased economic activity. But early signs suggest that official statistics may have underestimated the positive effects of the cut.

In fact, looking broadly across the past 30 years there appears to be little evidence that cutting corporation tax from 52 to 19 percent has fundamentally reduced revenue. Looked at as a proportion of national income, revenues from corporation tax have fluctuated cyclically between 1.7% and 3.5% of GDP, and are currently at 2.6%, which is the same rate as seen in 1985, when the main rate of tax was 40% and the Thatcher boom was well underway.

With the news that the United States has for the second time attacked targets linked to Syria’s Assad regime—in this case a convoy near Western forces in Al Tanf—concerned observers may be worrying that the Trump administration has chosen to make a major change in its Syria strategy. Fear not! As Secretary of Defense James Mattis told reporters:

“We’re not increasing our role in the Syrian civil war, but we will defend our troops. And that is a coalition element made up of more than just U.S. troops…”

Instead, you should probably just fear the fact that the United States no longer seems to have a Syria strategy.

Certainly, the Obama administration’s strategy towards Syria was inconsistent and vague. From the President’s statements early in the Syrian uprising that “Assad must go,” to his infamous red line comment, the Syrian chemical weapons deal, and the decision to intervene against ISIS, it often seemed as though the Obama administration was unsure whether it was willing to accept the Assad regime as part of a Syrian transition or not.

Nonetheless, throughout Obama’s term, the United States took no direct military action against Assad, and—other than arming a small number of rebels early in the conflict—largely ignored the question of Assad’s future, focusing instead on the campaign against ISIS.

With his disinterest in human rights, and his willingness to cooperate with Russia, the Trump administration was initially expected to be more conciliatory towards Assad than Obama. Yet only days after senior U.S. officials publicly stated that the U.S. priority was not to remove Assad, the President fired 59 Tomahawk missiles at a Syrian air base.

Yesterday’s attack marks the second such incident. That they don’t constitute an official policy change is in large part because they were apparently authorized by commanders in the field, reflecting Trump’s desire to delegate key military decisionmaking down the chain of command.

Yet in many ways, this highlights the dangers of such delegation: though the strikes may have been necessary to protect American and British Special Forces based near al-Tanf, they carry risks of retaliation for U.S. troops in Syria and Iraq, as well as the potential for escalation with Syrian regime forces, Iranian-backed militias, or even Russian forces.

Targeting decisions like this, made at the tactical level, are thus deeply worrying. As ISIS continues to decline, military advances will bring both sides closer, raising the potential for conflict that could drag the United States deeper into the Syrian quagmire.

Unfortunately, lack of clarity about the Assad regime and allied forces is only one of the important questions that the Trump administration has so far failed to address in Syria. Though the headlines largely focused on the disgraceful behavior of Turkish President Erdogun’s bodyguards in beating up protestors, his D.C. visit last week also yielded no apparent progress on the brewing Turkish-Kurdish conflict in Northern Syria.

Indeed, the Trump administration recently took the decision to directly arm Syria’s Kurdish rebels, one of the most effective forces against ISIS. This was probably the right decision, but strains relations with Turkey, our NATO ally, which considers these groups as terrorists, and is engaged in bombing them.

At the same time, Trump appears to look more favorably on Russian plans for resolving and ending the Syrian conflict than his predecessor, but has taken an openly hostile attitude towards Iran, one of the other signatories of the de-escalation plan, and a major player on the ground in Syria. These two positions cannot be easily reconciled.

Thanks to a recent boost under the new administration, there are now at least a thousand U.S. troops in Syria training and working with ground forces fighting ISIS. It is these troops—and the larger number of U.S. forces in neighboring Iraq—who are most placed at risk by the new administration’s incoherent approach to Syria.

Whether or not the White House realizes it yet, tactical decisions like the one made yesterday by commanders on the ground in Syria risk dragging the United States even further into this complex war. The only way they can avoid it? Develop a coherent Syria strategy. 

How do you solve a problem like the Donald? In a much-discussed column that ran Tuesday, Ross Douthat offered “The 25th Amendment Solution for Removing Trump.” Our 45th president has, by now, Douthat argues, demonstrated a breathtaking lack of the minimum requirements for the position he holds: including “managerial competence, a decent attention span… [and] a measure of restraint and self-control.” But given that his offenses thus far smack less of “high crimes [than] simple omni-incompetence,” removal under the 25th Amendment, on the grounds that Trump is “unable to discharge the powers and duties of his office,” is constitutionally “more appropriate” than impeachment, Douthat writes.

As a libertarian, I’m a sucker for crazy, longshot ideas, so of course I enjoyed the column. But Douthat’s argument rests on an unexamined assumption: that the impeachment power is categorically unavailable in cases of “omni-incompetence.” I don’t think that’s right. As I argue in a forthcoming piece for Reason magazine, this is the rare congressional power that’s actually broader than Congress believes it to be. (I’m sure Nick Gillespie’s going to love it.) 

The view that you can’t impeach a president for gross incompetence is widely shared, and some of the legislative history behind Article II, section 4, supports it. According to Madison’s notes on the Constitutional Convention, when George Mason moved to add “or maladministration” to the list of impeachable offenses, Madison objected that “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Mason then substituted “high Crimes and Misdemeanors,” and that’s what we ended up with.

But that text does not preclude all cases of “maladministration.” As the Nixon-era House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” noted, “at the time of the Constitutional Convention, the phrase ‘high Crimes and Misdemeanors’ had been in use for over 400 years” in British impeachments,” and extended to negligent discharge of duties, “procuring offices for persons unfit and unworthy of them,” and other transgressions falling short of grave criminality. Early American commentators, like Justice Joseph Story, understood the phrase to include offenses “growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.” 

And as Jonathan Turley has pointed out, both during and after the drafting of the Constitution, Madison himself took a view of the impeachment power broad enough to cover gross mismanagement, incompetence, and other “conduct simply incompatible with the status of the chief executive.” In the first Congress, Madison suggested that “the improper continuance of bad men in office,” or the “wanton removal” of good ones were acts of “maladministration” for which the president could rightfully be impeached. 

As Douthat sees it, however, you can impeach the president for being a crook; if he’s a clod or a crackpot, you can’t—and he puts POTUS emphatically in the latter category. He portrays Trump as borderline non compos mentis: “a child… cannot really commit ‘high crimes and misdemeanors’” or “obstruction of justice.” 

That assessment of Trump’s faculties is too harsh, it seems to me, and, at the same time, lets him off too easily. But even if it were correct, that wouldn’t mean impeachment is off limits. It’s unjust to punish someone mentally incapable of assuming legal responsibility. But where criminal convictions deprive the accused of liberty, impeachment only puts the officeholder out of a job he or she was unfit to hold. 

As it happens, the first impeachment trial in American constitutional history involved credible evidence that the accused was insane. In 1803, the House charged federal district court Judge John Pickering with, among other things, appearing in court “in a state of total intoxication,” and conducting himself in a “profane and indecent manner” making him guilty of “high misdemeanors, disgraceful to his own character as a judge.” Pickering’s own son, as well as his doctors, confirmed his mental instability. But despite his defenders’ argument that it was an “absurdity” to impeach a man who wasn’t in his right mind, the Senate removed Pickering in 1804. 

The American “precedents” are thin, 19 impeachments in the House, 15 of them federal judges. But those we have are in keeping with a remedy designed to “reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office.” 

In our last national debate on the subject, President Clinton’s defenders argued that the standard for impeaching presidents had to be higher than for judges. After all, judges serve for life, or during “good behavior,” and presidents are elected and term-limited. But the other main differences between the two positions hardly argue for leniency toward presidents. Judges don’t supervise the entire federal law enforcement apparatus or have the massive destructive capacity of the U.S. military at their disposal.  As Madison argued at the Philadelphia Convention, impeachment was “indispensable” when it came to the president, because, among other things, “he might lose his capacity after his appointment,” which “might be fatal to the Republic.”

Like Douthat’s proposal, impeachment is also a crazy, longshot idea. Still, legally and practically, it’s less of a stretch than removal via the 25th amendment. 

That amendment, introduced in the wake of the Kennedy assassination, clearly aimed at near-total disability in the medical sense—whether temporary, as during surgery, or permanent: Wilson’s stroke; if JFK had survived. In  context, “unable to discharge the powers and duties of his office,” has to mean something more than “turned out to be dangerously bad at the job.” 

As a practical matter, unless Trump decides he’s just as “witless and unmastered” as Douthat says he is, the “25th Amendment Solution” only gets off the ground via Section 4, when and if Vice President Mike Pence and a majority of Cabinet-department heads declare him unfit. Pence, who’s thus far stood by his man like a classic political “good wife,” seems unlikely to make the move. Even then, final resolution of the issue requires a supermajority vote in both chambers of Congress, as opposed to only the Senate in removal via impeachment. Trump might not be able to get away with standing “in the middle of 5th Avenue and shoot[ing] somebody,” but surely he could expect one-third of the House to back him here?

Either way, one thing is clear, to me at least: our system makes it far too hard to get rid of unfit presidents.

Economists and (classical) liberals have long criticized the failures of government planning, from Hayek and Mises and John Jewkes to even Robert Heilbroner. Ron Bailey wrote about centralized scientific planning, Randal O’Toole about urban planning, Jim Dorn about the 1980s enthusiasm for industrial planning, and I noted the absurdities of green energy planning

One concern about planning is that it will lead government to engage in favoritism and cronyism. So who would have guessed that when the leaders of the federal government set out to plan for their own survival—if no one else’s—in the event of nuclear attack, they failed?

That’s the story journalist and author Garrett Graff tells in his new book Raven Rock: The Story of the U.S. Government’s Secret Plan to Save Itself—While the Rest of Us DieAs the Wall Street Journal summarizes:

COG—continuity of government—is the acronymic idée fixe that has underpinned these doomsday preparations. A bunker was installed in the White House after Pearl Harbor, but the nuclear age (particularly after the Soviet Union successfully tested an atomic bomb in September 1949) introduced a nationwide system of protected hideaways, communications systems, evacuation procedures and much else of a sophistication and ingenuity—and expense—never before conceived….

Strategies for evacuating government VIPs began in earnest in the early 1950s with the construction of Raven Rock, an “alternate Pentagon” in Pennsylvania near what would become known as Camp David, and Mount Weather, a nuclear-war sanctuary in Virginia for civilian officials….

In 1959, construction began on a secret refuge for Congress underneath the Greenbrier, a resort in West Virginia. In the event of an attack, members of Congress would have been delivered by special train and housed in dormitories with nameplated bunk beds.

The most important COG-related activities during the Kennedy administration came during the Cuban Missile Crisis in October 1962, the closest this country has come to a nuclear war. Not only was the military mobilization chaotic—“one pilot bought fuel for his bomber with his personal credit card”—but VIP evacuation measures were, for the most part, a debacle: “In many cases, the plans for what would happen after [a nuclear attack on the U.S.] were so secret and so closely held that they were almost useless.” …

The Air Force also acquired, for the president’s use, four Boeing 747 “Doomsday planes” with state-of-the-art communications technology, which were nicknamed “Air Force One When It Counts.”…

Probably the most fraught 24 hours in the history of COG worrying occurred on Sept. 11, 2001, when al Qaeda terrorists attacked the World Trade Center and the Pentagon. COG projects and training had been ceaselessly initiated and honed for a half-century; but, as Mr. Graff writes with impressive understatement, “the U.S. government [wasn’t] prepared very well at all.”…

While Vice President Dick Cheney had been swiftly hustled to the White House bunker, “those officials outside the bunker, even high-ranking ones, had little sense of where to go, whom to call, or how to connect back to the government,” Mr. Graff writes. But there were enough people in the bunker to deplete the oxygen supply and raise the carbon-dioxide level, and so “nonessential staff” were ordered to leave. When House Speaker Dennis Hastert tried to call Mr. Cheney on a secure phone, he couldn’t get through….

When President George W. Bush heard the news about the attacks that morning, he was in Florida. He was whisked into Air Force One, which, Mr. Graff notes, “took off at 9:54 a.m., with no specific destination in mind.” It would eventually land, and the president would address the country. But “Air Force One’s limitations”—it wasn’t one of the Doomsday planes—“came into stark relief.” For one thing the plane’s communications systems were woefully inadequate for what was required on 9/11. “On the worst day in modern U. S. history,” Mr. Graff writes near the end of his exhaustingly detailed account (I sometimes felt buried alive under its mass of data), “the president of the United States was, unbelievably, often less informed than a normal civilian sitting at home watching cable news.”

Fifty years of planning for a single event, the most important task imaginable—the survival of the republic and their own personal survival—and top government officials still didn’t get it right. A good lesson to keep in mind when we contemplate having less-motivated government officials plan our cities, our energy production, our health care system, or our entire economy.

The Justice Department’s appointment of former FBI director Robert Mueller as Special Counsel takes the ongoing investigation of Russia’s alleged interference in the 2016 presidential election and possible collusion between Trump campaign officials and the Russian government to an entirely new level.  If the investigation is to be truly objective and informative, some crucial issues need to be addressed. 

Above all, it is imperative to determine the full context of the Trump-Russia relationship.  The old parable about a group of blind men feeling limited portions of an elephant and reaching erroneous conclusions applies here.  Without context, someone feeling the elephant’s trunk may express unwarranted confidence that it is a thick rope.

One of the issues that must be examined is the extent and nature of the contacts between members of Trump’s election campaign team and Russian officials.  To determine that in a dispassionate manner will not be easy.  An anti-Russia hysteria has reached alarming proportions in the past few months, eerily resembling the McCarthy era in the 1950s.  As I note in a recent article in the American Conservative, there appears to be a concerted effort to make Russia a pariah.  Indeed, at least two House Democrats have voiced objections to any contact whatsoever between the Trump administration and Russian officials.

That attitude is both unrealistic and potentially very dangerous.  Even during the worst days of the Cold War, U.S. leaders never severed communications with Moscow.  In fact, constructive dialogues produced some worthwhile agreements with America’s totalitarian adversary, including the treaty banning atmospheric nuclear tests in 1963.  To adopt an unprecedented, hardline attitude now toward post-Soviet Russia, which is a conventional rather than a totalitarian power, would be irresponsible.

To determine the context of links between Trump campaign advisers and Russian officials, three questions need to be asked.  First, were those advisers also in communication with other foreign governments, or were the Russia contacts exceptional?  If the former, it would suggest normal preparations on the part of people who might become part of a new administration.  Such ground work would be prudent so that potential officials could hit the ground running immediately upon their appointment to relevant posts.  So, were the Trump people also in touch with Chinese, Turkish, Israeli, German, Japanese, etc. officials, as well as Russian policymakers?  And, on a related point, were the number of Russian contacts disproportionate?

Another key question is how the links to Russia and other foreign governments compared to the activities of Hillary Clinton’s advisers and those of campaign organizations in previous presidential election cycles.  Was the behavior of Trump’s people a substantial deviation from the norm, or do potential incoming officials engage in such conduct routinely?

These are crucial considerations.  If the Trump team’s contacts with Russia were unusual in number, that would create justifiable suspicions of impropriety.  If they were typical, such a context would support the administration’s contention that the massive criticism is little more than a partisan witch hunt.  Mueller and his investigators need to make that determination with indisputable clarity.

From a Boston Magazine article about the push for a tax on soft drinks in Massachusetts: 

Caroline Apovian, a professor at the Boston University School of Medicine and the director of the Nutrition and Weight Management Center at Boston Medical Center, says that sugary drinks should be regulated similarly to alcohol.

“We regulate alcohol,” she says. “We do not sell alcohol to children. We tax it and you can’t drink while you are working.”

If the day comes that sugary drinks are regulated like alcohol, I feel that I and many other parents will need to throw ourselves on the mercy of the court. Not only have we procured sweet tea, sports drinks, Dr. Pepper, and similar items for underage members of our household – think of how the law treats procuring controlled beverages for minors! – but, sinking deeper into iniquity, we have even enabled our offspring to set up as dealers and manufacturers themselves, plying their neighbors and friends with the fatal decoctions just to pocket the resulting quarters of revenue. 

And the worst of it, as they never tell you ahead of time, is not the legal consequences we might face if Prof. Apovian had her way: it’s that you wind up squeezing all the lemons yourself.

Statement for the Record of the Cato Institute[1]
Submitted to the House Committee on the Judiciary
Markup on
“H.R 2431 - Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act”
Thursday, May 18, 2017

The Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act (H.R. 2431) purports to empower states and localities to take action against serious criminals who have violated immigration law.[2] In reality, the bill is a vehicle for a massive expansion of the federal government and of federal power over states and their citizens.

The legislation imposes new mandates on states and uses federal grants to coerce them into following the bidding of the federal authorities. These requirements undermine the federalist system that the Founders intended. Even where it does grant certain state agencies greater powers, it does so while undermining the authority of the state legislatures. It authorizes state and local law enforcement personnel to enforce immigration laws without any authorization from their state legislature to do so and without any training.

The powers that it authorizes will inevitably lead to violations of the civil liberties and privacy of ordinary Americans. Any state official who suspects someone of violating immigration law can demand that they prove their status in the United States and hold them if they fail to do so – all without so much as a request from the federal agencies. It grants states access to federal surveillance databases that include U.S. citizens, compromising Americans’ privacy.

Its provisions that criminalize illegal presence and ordinary status violations would unnecessarily turn millions of peaceful people into criminals and push America further down the road of overcriminalization. This bill would impose billions of dollars in costs on taxpayers with very little benefit.[3]

H.R. 2431 undermines federalism

America’s federalist system of government diffuses power between multiple levels of government. Federalism is each level of government having discretion within their roles and each level respecting the others’ roles. States and localities are responsible for policing communities. The federal government is responsible for the removal of unauthorized individuals. It should not dictate to states how to protect their communities, and states should not be able to dictate to the federal government how to proceed in its removal efforts.

H.R. 2431 ignores both elements of federalism. On the one hand, it allows states to dictate to the federal government how to prioritize the removal of immigrants from the United States. Sec. 102 clearly recognizes this as a federal responsibility, stating that states “may not admit aliens to or remove them from the United States.” Yet Sec. 102 authorizes state law enforcement otherwise to enforce immigration laws “to the same extent as the federal government.” In other words, the only consequence of this provision would be to allow states to dictate to the federal government who it should target first. Indeed, the sponsors of the bill in the 114th Congress made it explicit that the goal of the bill was to overturn federal agency priorities for enforcement.[4]

These provisions undercut the authority of Congress, which repeatedly emphasized in each Department of Homeland Security (DHS) appropriation that the department “shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”[5] They could also interfere with DHS removal operations that states and localities are unaware of, even compromising investigations. DHS has access to a broader range of intelligence in all 50 states and internationally regarding the best use of its resources. Yet Sec. 108 requires DHS to “schedule for the prompt transfer of apprehended aliens from the custody of States.”

On the other hand, the bill purports to empower states and localities, but the main thrust of the bill is the opposite—it requires states to participate in federal enforcement operations against their wishes. Indeed, Sec. 114 states unequivocally that states and municipalities cannot create policies that decline to cooperate fully in the enforcement of federal immigration law (p. 25). It goes on to ban policies that restrict state and local law enforcement from reporting unauthorized immigrants to federal authorities. These mandates are unfunded. In these ways, it eliminates the discretion of state and local law enforcement regarding their policing priorities in their own local communities.

The bill also uses federal grants to bully states into doing the will of Congress. Sec. 114 conditions any federal grant “that is substantially related to law enforcement, terrorism, national security, or immigration or naturalization” on compliance with these new unfunded requirements. Sec. 115 conditions these same grants on cooperation with federal requests to detain immigrants on its behalf. If the federal government does subsidize states, it should do so without strong-arming them into its priorities.

Courts could see these mandates as “commandeering” a state into enacting a federal program, which would be unconstitutional.[6] The spending provisions also flirt with unconstitutional coercion of states by threatening to withdraw potentially large sums of law enforcement funds.[7] Congress should not push the constitutional limits of federal intrusion into state policy decisions. Yet the bill manages to undercut this vision in both directions—allowing states to impose on the federal government and the federal government to impose on the states.

Sec. 106 also creates new grant programs to state and local governments “for procurement of equipment, technology, facilities, and other products that facilitate and are directly related to” immigration enforcement. These subsidies also undermine federalism by removing local accountability for spending that occurs at that level. At the same time, the federal government has no real means to guarantee that the grants actually result in additional state enforcement as opposed to allowing the state to shift law enforcement funds to other purposes.

H.R. 2431 undermines democracy and obstructs accountability

Even when the bill explicitly expands the authorities of state law enforcement, it undermines the authority of state legislatures, thereby undercutting democratic oversight. Sec. 102 authorizes state law enforcement to “investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens for the purposes of enforcing immigration laws of the United States to the same extent as Federal law enforcement personnel.” It has no requirement that state legislatures have to authorize this enforcement to take place, meaning that any local officer may—on their own—begin arresting people that he believes to have violated immigration laws.

Reinforcing this provision, the bill immunizes any local officer who chooses to make these arrests, stating that they are acting under federal authority. This severely curtails the ability of the state to regulate this behavior. State legislatures may want to adopt policies different from certain members of their police forces that they believe will better protect their communities than targeting immigrants for removal. The bill does not even require that the head of the law enforcement agency create the enforcement policy and guidelines for the state, meaning that literally any police officer could begin to make arrests and detentions of individuals with federal qualified immunity.

These provisions are even more problematic because the bill imposes no training requirements on police prior to allowing them to conduct enforcement. Yet Sec. 109 states that nothing in it “shall be construed as making any immigration-related training a requirement for, or prerequisite to, any State or local law enforcement officer to assist in the enforcement of Federal immigration laws.” This means that the hundreds of thousands of police officers in America could make arrests without any training at all, and their state legislatures would actually be banned from preventing them from such arrests under Sec. 114 if the officer was “cooperating with Federal law enforcement entities.”

The legislation is not even consistent on this point. Sec. 112 makes various changes to the 287(g) program—which currently allows state and local police to make immigration arrests with a formal agreement between federal and state authorities—but the changes do not remove the program’s requirement that police must undergo training. Thus, in one section of the bill, the assumption is that local law enforcement need no training, while in another section, it assumes that they do.

H.R. 2431 establishes a situation in which any law enforcement officer in America can independently arrest and detain people he believes have violated any aspect of immigration law, including arcane labor regulations. Not only are state legislatures prohibited from stopping this situation from happening, they are subject to monetary penalties if they try. It is almost impossible to imagine a bill more directly intended to prevent state governments from controlling their own law enforcement personnel.

H.R. 2431 creates an unworkable enforcement system

State and local cooperation with ICE makes sense in certain contexts. Both states and the federal government have an unquestionable interest in removing criminal aliens. This cooperation already happens on a regular basis. H.R. 2431 encourages states to make arrests of any alien in violation of immigration laws without agreement or even consultation with ICE. But the determination of removability and admissibility are the results of a federal removal process. For example, immigrants in removal proceedings may present evidence of eligibility for status or relief before an Immigration Judge who can evaluate this evidence. No technology can provide states the ability to make a removability determination on their own.

Sec. 102 itself makes clear that removability and admissibility are federal determinations, yet Sec. 102(a) and Sec. 108 allow states and localities to hold people and criminally prosecute them for supposed violations of immigration law prior to turning them over to the federal government. Even if a state could determine a person’s status reliably without cooperation from the federal government, individuals who currently lack status in the United States may be eligible for status or forms of relief, including asylum, withholding of removal, or even a green card. Yet once again, Sec. 102(b) makes clear any determination to admit an alien is a federal decision, so states cannot come to these conclusions.

The final result of H.R. 2431 would be states and localities across the country making arrests and detention of individuals based on uncertain information. Sec. 102 apparently grants them completely unfettered discretion to detain a person indefinitely until ICE can respond. ICE would then be forced to respond to thousands of requests, attempting to determine ex post facto whether the person is, in fact, an unauthorized immigrant and a priority for removal. Rather than ICE setting priorities, and working with localities to carry them out, H.R. 2431 allows states to set priorities and forces ICE to respond. The bill would certainly result in many arrests that ICE would decline to prosecute, purposelessly taking up its finite resources.

It is not clear that the ICE union, which has strongly supported earlier versions of this legislation, even favors this idea. In June 2013, ICE union head Chris Crane testified in favor of a prior version of this bill, listing a dozen provisions that he felt would improve security but never mentioned state and local arrests without ICE support.[8]

H.R. 2431 threatens the privacy and civil liberties of Americans

Allowing every single law enforcement officers in the country discretion to enforce immigration laws without any training or federal oversight would inevitably result in violations of the civil liberties of Americans. In 2010, the Department of Homeland Security’s Inspector General (DHS IG) concluded that under ICE’s 287(g) agreements—which currently permit state and local law enforcement to conduct immigration enforcement in cooperation with and an agreement with the federal government—many law enforcement agencies were not complying with the terms of those agreements and “civil liberties considerations are not consistently weighed in the 287(g) application review and selection process.”[9]

It listed several instances of 287(g) abuses, including the detention of a U.S. citizen by a 287(g) local officer.[10] Several 287(g) agreement holders have had their agreements revoked after they engage in a pattern of wrongful stops of U.S. citizens.[11] In December 2011, the Department of Justice (DOJ) concluded that under 287(g), Maricopa County in Arizona engaged “in a pattern or practice of unconstitutional policing.”[12]  A federal district court also found that Maricopa County violated its citizens’ constitutional rights during immigration enforcement.[13] In September 2012, DOJ found that Alamance County in North Carolina similarly engaged in “a pattern or practice of violations of the United States Constitution and federal law” under the authority of 287(g).[14] In 2012, DHS responded to the 287(g) problems by dramatically limiting the authority of 287(g) officers, banning them from exercising their authority outside of jails.[15]

As mentioned earlier, H.R. 2431 allows states and localities to arrest individuals without a request from DHS. This is particularly troubling given the number of people who have been subject to wrongful detention by state and local police even with a request from DHS. Allentown and Lehigh County, Pennsylvania, for example, settled with a U.S. citizen who was wrongfully detained as an unauthorized immigrant.[16] Clackamas County, Oregon, settled a case after it detained a woman for 14 days based on an ICE request.[17] Salt Lake County, Utah settled a case after they detained a person for a month and a half for ICE.[18] One U.S. citizen in Rhode Island was subject to wrongful detention by state police twice due to ICE mistakes.[19]

During the course of the Rhode Island lawsuit, the Rhode Island Department of Corrections found that from 2003 to 2014, ICE issued detainers for 462 people who state police found were U.S. citizens.[20] ICE only issued 5,215 total detainers to agencies in the state, meaning that almost 10 percent of the detainers in Rhode Island were for U.S. citizens.[21] It is hard to believe that Rhode Island, with a low proportion of immigrants and Hispanics generally, has a higher share of wrongful detentions than other states. If this rate held nationally, 167,302 U.S. citizens have been subject to an ICE detainer since 2003.[22] H.R. 2431 extends the detainer power to untrained state and local law enforcement to reach conclusions of probable cause of immigration violations. This would increase the risk of wrongful detention of Americans considerably.

Under 287(g) agreements, local or state officers must undergo some training prior to acting as an immigration agent, yet the DHS IG found that “287(g) training does not fully prepare officers for immigration enforcement duties.”[23] H.R. 2431 requires no training at all, so any problems will surely grow.

Sec. 104 grants states access to all “Federal programs or technology directed broadly at identifying inadmissible or deportable aliens.” The most common program is ICE’s Investigative Case Management (ICM) system, which creates profiles of any individual by accessing a variety of law enforcement databases. It “can provide ICE agents access to information on a subject’s schooling, family relationships, employment information, phone records, immigration history, foreign exchange program status, personal connections, biometric traits, criminal records, and home and work addresses.”[24] This database includes U.S. citizens, as it must in order to eliminate them from further investigation. All of this information gathered, pursuant to many different authorities, could be used by any untrained law enforcement agency in the country for virtually any reason under H.R. 2431, compromising the privacy of every single American.

H.R. 2431 unnecessarily criminalizes nonviolent people

Sec. 314 criminalizes any violation of immigration law no matter how minor, including overstaying a visa by a single day or accepting $10 to mow someone’s lawn without employment authorization. Overnight, it would turn roughly 4 million unauthorized immigrants who have overstayed their visas into criminals.[25] On an ongoing basis, it would criminalize the 416,000 tourists—mainly from Europe and Canada—who overstay their visa from any period each year.[26] The sponsors in prior years have claimed that the bill would reduce the number of “criminal” aliens, but in reality, it would massively increase their numbers without any clear purpose.[27]

The sponsors fail to tout the benefits of this proposal, and the Committee report on the prior version of the bill from 2013 justifies this provision solely as a reaction to a single district court decision.[28] The U.S. District Court for the District of Arizona enjoined the immigration enforcement of efforts of Maricopa County, which had its 287(g) agreement terminated (as noted earlier). It stated that the county’s ‘‘focus on removable alien as opposed to aliens who have committed criminal offenses violates the strictures against unreasonable seizures set forth in the Fourth Amendment.’’[29] The Committee report concludes the only way to allow states to enforce immigration laws would be to criminalize all violations of immigration law.

Yet this reading of the decision is incorrect. The Court stated:

The deputy cannot prolong the stop to investigate a passenger unless the deputy through his or her observations obtains particularized reasonable suspicion that the passenger is committing a violation that the deputy is authorized to enforce. In such cases, the deputy is only allowed to prolong the stop for the brief time sufficient to investigate the existence of the crime. When the [county] deputies were 287(g) authorized, that authority presumably extended to include administrative and hence non-criminal violations of federal immigration law. Such authority, however, no longer exists.[30]

In other words, the district court held that when the county had authorization from the federal government, they had the authority to detain individuals to investigate violations of immigration law. Only after DHS revoked this authority did the county lose the ability to detain and investigate civil immigration violations.

Thus, even assuming that authorizing states and localities to conduct immigration raids is appropriate, this district court decision is not a legitimate justification for criminalizing all aspects of immigration law. Sec. 102 clearly provides authorization for localities to conduct enforcement of civil violations, and that would suffice to resolve the court’s concern.

Immigration offenses are already the top reason for a criminal arrest under federal law, composing half of all arrests.[31] This bill could dramatically increase the number of these offenders. Such a focus on nonviolent offenses demonstrates misplaced priorities. Law enforcement should target individuals who are threats to their community, and the federal government should save prison space for similarly dangerous people. In other contexts, the Committee has endeavored to prevent further overcriminalization of nonviolent people, and it should apply those lessons here.[32]


[1] The Cato Institute is a libertarian 501(c)(3) nonprofit think tank founded in 1977 and located in Washington D.C.

[2] “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act,”….

[3] The Congressional Budget Office estimated that an earlier version of the legislation would cost $22.9 billion over 5 years. Congressional Budget Office, “H.R. 2278 Strengthen and Fortify Enforcement Act,” December 5, 2013,….

[4] House Judiciary Committee, “The Michael Davis, Jr. in Honor of State and Local Law Enforcement Act Rep. Trey Gowdy (R-S.C.) – Summary.”….

[5] “H.R.2029 - Consolidated Appropriations Act, 2016,”

[6] The Supreme Court has held that Congress “may neither issue directives requiring the States to address particular problems, nor command the States’ officers” (Printz v. United States, 521 U.S. 898 (1997)). Moreover, it has held that “Congress may not commandeer the States’ legislative processes,” and the “Constitution does not confer upon Congress the ability simply to compel the States” (New York v. United States, 505 U.S. 144 (1992)).

[7] In NFIB v. Sebelius, 567 U.S. 1 (2012), the Court held that the Affordable Care Act coerced states by denying those that didn’t establish health care exchanges all of their federal Medicaid funding. “Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system,” it wrote. “Spending Clause programs do not pose this danger only when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds.”

[8] Comments of Chris Crane, “Hearing on Strengthen and Fortify Enforcement (SAFE) Act,” the Committee on the Judiciary House of Representatives, June 13, 2013,

[9] Department of Homeland Security Office of Inspector General, “The Performance of 287(g) Agreements,” March 2010.

[10] Ibid.

[11] Jeremy Duda, “Homeland Security revokes 287(g) agreements in Arizona,” Arizona Capitol Times, June 25, 2012.….

[12] Thomas Perez, “Re: United States’ Investigation of the Alamance County Sheriff’s Office,” U.S. Department of Justice, Civil Rights Division, December 15, 2011,….

[13] Manuel de Jesus Ortega Melendres et al. v. Joseph M. Arpaio, U.S. District Court for the District of Arizona (May 24, 2013) (No. PHX-CV-07-02513),

[14] Thomas Perez, “Re: United States’ Investigation of the Alamance County Sheriff’s Office,” U.S. Department of Justice, Civil Rights Division, September 18, 2012,

[15] Ted Hesson, “As One Immigration Enforcement Program Fades Away, Another Rises,” ABC News, December 27, 2012,…

[16] American Civil Liberties Union of Pennsylvania, “Galarza v. Szalczyk, et al.,” available at

[17] Steve Mayes, “Woman at center of landmark immigration case settles suit that changed jail holds in state, nation,” The Oregonian, May 18, 2015, available at…. ↩

[18] Ashton Edwards, “Man settles immigration lawsuit against Salt Lake County, awarded $75,000,” Fox 13 News, August 25, 2014, available at….

[19] American Civil Liberties Union Rhode Island, “Court Filings Show Immigration Officials Issue Detainers Against U.S. Citizens,” November 17, 2015,….

[20] Ibid.

[21] TracImmigration, “Tracking Immigration and Customs Enforcement Detainers,” Syracuse University,

[22] Ibid.

[23] Ibid, p. 27.

[24] Quoted in: Matthew Feeney, “Big Data Tool For Trump’s Big Government Immigration Plans,” Cato Institute, May 9, 2017,….

[25] “Modes of Entry for the Unauthorized Migrant Population,” Pew Research Center, May 22, 2006,….

[26] Jeffrey Passel and D’Vera Cohn, “Homeland Security produces first estimate of foreign visitors to U.S. who overstay deadline to leave,” Pew Research Center, February 3, 2016.…

[27] House Judiciary Committee, “The Michael Davis, Jr. in Honor of State and Local Law Enforcement Act Rep. Trey Gowdy (R-S.C.) – Summary.”…

[28] Bob Goodlatte, “Strengthen and Fortify Enforcement Act - House Report 113-678 Part 1,” House of Representatives, December 16, 2014,

[29] Melendres v. Arpaio, (D. Ariz.) (2013 WL 2297173).

[30] Ibid, p. 132.

[31] John Gramlich and Kristen Bialik, “Immigration offenses make up a growing share of federal arrests,” Pew Research Center, April 10, 2017.…

[32] House Judiciary Committee, “Press Release - House Judiciary Committee Reauthorizes Bipartisan Over-Criminalization Task Force,” February 5, 2014,….

Donald Trump will make his first foreign visit this week, eschewing more typical early presidential destinations like Canada in favor of a photo-op heavy swing through Saudi Arabia, Israel, and the Vatican, before attending next week’s NATO summit in Brussels. Of these, perhaps the most interesting will be his time in Riyadh, where he will conduct bilateral meetings and attend two summit gatherings: one a Gulf Cooperation Council (GCC) meeting, and the other a U.S.-Arab Islamic summit.

Despite Trump’s negative comments about Saudi Arabia during the campaign, he has been more supportive since his inauguration, and likely looks forward to a warm reception in Riyadh. For their part, the Saudis have invested heavily in lobbying the new administration, with whom they believe they can work on issues from counterterrorism to Iran. For a president under fire at home, and whom even foreign allies treat with extreme caution, the open embrace of Saudi leaders is undoubtedly welcome.

During the visit, Trump is expected to make two announcements. The first is a massive arms sale worth as much as $300 billion over a decade. The package includes a number of advanced systems, most notably a THAAD missile defense system, and is intended to improve Saudi Arabia’s military capabilities. The second rumored announcement – the creation of an “Arab NATO” – is more unexpected. Though such an idea has been suggested before, regional realities have typically prevented it from advancing past the idea stage.

Indeed, though the U.S. has long sought to build up military cooperation and interoperability between regional states, policy differences and long-running disputes have torpedoed similar initiatives in the past. From military cooperation within the GCC to 2015’s Saudi-led announcement of an “Islamic coalition to fight terrorism“ these efforts have yielded few concrete results. Even at the height of the Cold War, the Baghdad Pact (CENTO) was rendered ineffectual by regional disputes.

In reality, the likelihood of failure may not worry either Trump or the Saudi leadership, both of whom have shown a propensity for policy characterized by big, flashy announcements that are rarely followed through with concrete steps.

Of greater concern are other areas of likely discussion at the summit, particularly the prospect of greater U.S.-Saudi cooperation against Iran. Though Trump has thus far proven unwilling to “rip up” the Iranian nuclear deal, he has initiated new sanctions on Iran, and repeatedly promised a more assertive U.S. policy to deal with Iran’s “destabilizing” regional behaviors.  Unfortunately, this approach carries risks, including the prospect of undermining the nuclear deal or of creating a wider regional conflict.

And while the President and Saudi leaders may agree on many policy issues, the summit does present several areas of potential conflict. For one thing, the hosts have extended an invitation to Sudan’s President Omar al-Bashir, currently under indictment by the ICC for war crimes and genocide, a choice which has upset many in Washington, if not necessarily the President himself. Trump is likely to accidentally provide support to one side in the ongoing influence struggle between Mohammed bin Nayef, the Saudi Crown Prince, and Mohammed bin Salman, the King’s son and second-in-line to the throne.

Trump’s scheduled speech on Islam also promises a variety of opportunities for misunderstanding and misstatements; in addition to the President’s habit of deviating from prepared remarks, the speech itself is reportedly being written by advisor Stephen Miller. Miller is not only the author of the Trump administration’s controversial travel ban on various Muslim countries, but also waged a campaign during his college years to create awareness of the dangers of “Islamofascism.”

In short, though Trump’s trip to Saudi Arabia offers little in the way of policy disagreements – and presents a valuable opportunity for the new administration to distance itself from turmoil at home – it also offers plenty of potential pitfalls for the new President and his staff. And that’s before he even makes it to stop number two. 

We get it: Private schools—and hence school choice programs—are bad because all private schools do not have to accept all children with disabilities. We’ve heard it before, and we heard it again in an NPR story yesterday taking the Indiana voucher program to task for private schools turning away kids with disabilities.

How could they be so cruel, and choice supporters so callous?

Let’s start with a simple reality: Educating children with disabilities is generally more expensive than educating children without them, and private schools often struggle just to pay for educating the latter group. That should be no surprise: In the 2011–12 academic year—the most recent with public and private data—public schools spent $13,398 per pupil. Private schools, which rely on families paying tuition after they have paid taxes for the “free” public schools, charged on average $11,170, and many private students receive tuition discounts and aid. For Roman Catholic and other religious institutions—the most numerous private schools—tuition was even lower: $7,170 and $9,040, respectively. Private schools do sometimes receive subsidies from parishes, dioceses, and donors, but it is herculean task to overcome public schools’ big funding and pricing advantages.

But in Indiana there is a voucher program, so surely private schools there have no excuse.

Set aside that for most of the life of Hoosier private schools there was no voucher program—it only started in 2011—so they were hard-pressed to compete for non-disabled students, much less establish robust special education programs. Is the funding equitable now?

Nope. As the NPR story notes, “the poorest students qualify for a voucher that’s worth roughly 90 percent of what the state would have spent in a public school, but now some middle class families actually qualify for a half voucher.” So no one using a voucher gets their full state allotment. And the state is only one funder of public schools; altogether, Indiana public schools spent over $10,000 per student. What’s the biggest average voucher? Only about $5,700.

To be fair, in the 2013–14 school year voucher-receiving schools became eligible to receive state special education funds for students with disabilities, but see the previous point: that’s not much time to build up strong accomodations.

Let’s move the spotlight: Do all public schools actually have to take all students with disabilities? No. Not only do public schools sometimes fail to provide relatively easy accommodations, some disabilities are too challenging for even well-funded public schools to handle. As of 2013—the most recent date for which I could find data—around 4 percent of students with disabilities, or 259,000 children, were in private schools or other settings that were not regular schools, or private schools chosen by parents.

Private schools tend to have appreciably less money than the “free” public schools against which they have to compete; vouchers in Indiana—NPR’s target—don’t provide funding parity; and public schools redirect some kids with disabilities. Suddenly private schools don’t seem so exclusionary or heartless. Instead, the “discrimination” line, even if well intended, seems kind of unfair to them.

One more thing: School choice is increasingly being targeted to children with disabilities, with programs now in Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Utah, and Wisconsin. Why? Because parents with special needs children, especially, want empowerment—the ability to seek out what’s best for their children and control the money to educate them—rather than dependence on byzantine laws, bureaucracy, and just plain hope that maybe the system will work for their children. It’s why Florida’s McKay Scholarship Program—the granddaddy of special needs choice programs—enrolls over 30,000 students and has enjoyed very high parental support.

As long as Donald Trump is in the White House talking about a federal school choice program, the fire directed at educational freedom will likely be coming hot and heavy. But if you are going to critique education that empowers families, please at least provide all the relevant information.

President Trump is being accused of “obstruction of justice” because of a conversation that he may have had with former FBI Director James Comey.  According to the news stories, Trump may have asked Comey to lay off his former National Security advisor, Michael Flynn.  In this post I want to briefly examine the legal doctrine of obstruction of justice.

To begin, a basic principle of American criminal law is that the line between what’s lawful and what’s unlawful needs to be clear so we will know, in advance, what conduct might land us in a prison cell.  That’s the gist behind the constitutional prohibition of ex post facto laws.  Laws with vague terms raise the same danger.  When laws are vague, police and prosecutors can abuse their power and trap people.  And that’s the danger with a catch-all doctrine such as “obstruction of justice.”

“Obstruction” has sometimes been defined by the authorities as almost any action that “impedes” an investigation.  Invoking your constitutional right to silence, your right to speak with an attorney, or the attorney-client privilege are sometimes deemed “obstruction.”  Don’t the courts restrain those abuses?  Yes, sometimes they do.  I’m presently editing a book of Judge Alex Kozinski’s legal opinions.  One case, United States v. Caldwell, touches on this subject.  Here is Judge Kozinski:

Under the government’s theory, a husband who asks his wife to buy him a radar detector would be a felon — punishable by up to five years in prison and a fine of $10,000 — because their actions would obstruct the government function of catching speeders. So would a person who witnesses a crime and suggests to another witness (with no hint of threat) that they not tell the police anything unless specifically asked about it.So would the executives of a business that competes with a government-run enterprise and lowers its prices to siphon off the government’s customers. So would co-owners of land who refuse to sell it for use as a military base, forcing the government to go to the extra trouble of condemning it. So would have Elliot Richardson and William Ruckelshaus, had they agreed with each other to quit if asked by President Nixon to fire Archibald Cox. The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way. It can’t be that each such action is automatically a felony.

I should note that when James Comey served as a prosecutor in New York, he pursued Martha Stewart and went so far as to say that her assertion of innocence was itself a violation of the law!  When Comey worked as assistant attorney general, he also took a dangerously expansive view of what he considered “uncooperative” conduct by business firms.  He expected lawyers for business firms to act as deputies for the federal government, which raised constitutional problems—especially for employees who were unaware of the legal minefield all around them during a purported “internal” investigation.

Let’s also consider how the doctrine might work within the government itself.  Say a rookie cop busts a homeless man named Al, for possession of heroin.  Al is street wise so he offers to become a snitch if his charge is dropped.  Al says he was using heroin with the governor just the day before and that the governor told him that he kept a stash of other drugs in his desk at the mansion.  The rookie thinks this is a huge deal and proposes to use Al in a sting operation against the governor.  The police captain rejects the proposal and tells the rookie to forget the whole thing because it’s a made up story.  Has the captain obstructed the investigation or exercised appropriate supervision?

Another example.  Let’s say 50 FBI agents are working on the Russia investigation (improper, possibly illegal, actions involving Mr. Trump or others working on his campaign).  One agent is convinced that Mr. Trump is a traitor, taking bribes from Putin, and other illegal acts.  He proposes grand jury subpoenas for Mr. and Mrs. Trump so that they can be questioned under oath right away.  Only his FBI supervisor rejects the idea.  Has the FBI supervisor obstructed justice or exercised sound discretion?

One important difference, of course, is that neither the police captain nor the FBI supervisor, were targets (or around the targets) of the underlying investigation. Repeat: That is an important difference.  The main point of this post is simply to caution against wild and vague claims of “obstruction of justice.”  Legal rights should never be considered “obstruction.”  When judges, or prosecutors, or law enforcement supervisors restrain overzealous subordinates, that should not be considered “obstruction.”  Mr. Trump is not above the law, but investigators must also respect the law as they go about their work.

The attention of most in Congress, the media, and the privacy rights community has been focused this spring on the looming Foreign Intelligence Surveillance Amendments (FAA) Act Section 702 reauthorization fight, generally for good reasons. However, other expansions of domestic surveillance powers and data sharing are getting far less attention—and one such measure before the House today may dramatically expand the kind of information state and local law enforcement agencies can get from the federal government.

Introduced on April 26 by Rep. John Katko (R-NY), the “Improving Fusion Centers’ Access to Information Act” (HR 2169) is designed to plug any “information gaps” in state “fusion centers” by modifying the Homeland Security Act of 2002 to require DHS to

identify Federal databases and datasets, including databases and datasets used, operated, or managed by Department components, the Federal Bureau of Investigation, and the Department of the Treasury, that are appropriate, in accordance with Federal laws and policies, to address any gaps identified pursuant to paragraph (2), for inclusion in the information sharing environment and coordinate with the appropriate Federal agency to deploy or access such databases and datasets;

If the sound of this makes you feel uncomfortable, it should for several reasons—not the least of which is the last-minute decision by the Obama administration to make more raw (and thus potentially unverified or inaccurate) intelligence from the National Security Agency available to the FBI, and thus other law enforcement agencies the FBI decides need the data.

What makes Katko’s bill—which is coming to the House floor under expedited consideration via a legislative procedure known as “suspension of the rules“—even worse is that it ignores the 2012 findings of a Senate Homeland Security Committee report that found that state fusion centers were at best worthless, and at worse Bill of Rights violation factories.

In the press release on the committee report, then chairman Senator Tom Coburn (R-OK) stated, “It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties.”

Coburn went on to note:

Unfortunately, DHS has resisted oversight of these centers. The Department opted not to inform Congress or the public of serious problems plaguing its fusion center and broader intelligence efforts.  When this Subcommittee requested documents that would help it identify these issues, the Department initially resisted turning them over, arguing that they were protected by privilege, too sensitive to share, were protected by confidentiality agreements, or did not exist at all.  The American people deserve better.  I hope this report will help generate the reforms that will help keep our country safe.

Among the report’s findings:

  • The Department of Homeland Security estimated that it had spent somewhere between $289 million and $1.4 billion in public funds to support state and local fusion centers since 2003, broad estimates that differ by over $1 billion.
  • The investigation found that DHS intelligence officers assigned to state and local fusion centers produced intelligence of “uneven quality – oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism.”  
  • DHS officials did not provide evidence to the Subcommittee showing unique contributions that state and local fusion centers made to assist federal counter terrorism intelligence efforts that resulted in the disruption or prevention of a terrorism plot.
  • The investigation also found that DHS did not effectively monitor how federal funds provided to state and local fusion centers were used to strengthen federal counterterrorism efforts.  A review of the expenditures of five fusion centers found that federal funds were used to purchase dozens of flat screen TVs, two sport utility vehicles, cell phone tracking devices and other surveillance equipment unrelated to the analytical mission of an intelligence center.  Their mission is not to do active or covert collection of intelligence.  In addition, the fusion centers making these questionable expenditures lacked basic, “must-have” intelligence capabilities, according to DHS assessments.

I don’t for a minute doubt John Katko’s patriotism or desire to protect Americans from legitimate threats. What I do question is exactly how much research he and his staff did on how useless these fusion centers are and how giving them access to even more information on innocent Americans will only increase the risks that people with no connections to terrorism will become victims of state and local law enforcement “counterterrorism” witch hunts. That the bill is considered “non-controversial” by the House leadership is a testament to how little regard they have for the Fourth Amendment rights of the citizens they were elected to represent.

An Argentine attorney, Maximiliano Gluzman, completed a master’s in law (LL.M.) at Vanderbilt Law School—including a heavy dose of common-law subjects—but was denied an opportunity to sit for the Tennessee bar, even though nobody disputes that he’s an “obviously a very, very qualified” lawyer (as one of the bar examiners conceded) and “one of the very best students” ever to graduate from his school (as its dean put it). In January 2016, however, new bar rules went into effect that essentially prevent foreign students from sitting for the bar by requiring a J.D. from an American law school.

The case is now before the state supreme court. The Beacon Center, Tennessee’s most prominent free-market advocacy group, has filed a brief supporting Mr. Gluzman, which Cato and the Goldwater Institute have joined. Our brief focuses on the right to earn an honest living going back to Magna Carta.

Indeed, Tennessee was founded out of nothing so much as the pursuit of economic opportunity. The state constitution reflects the special importance of the right to earn a living by embedding it in the “Law of the Land” Clause. This provision traces directly to the Magna Carta, a document itself primarily concerned with property rights and the right to earn a living.

While federal courts tend to provide thin protections to this right under the U.S. Constitution, the Tennessee supreme court has long protected it as a “fundamental” right. Importantly, the Tennessee legislature recently reaffirmed that the right was fundamental in the appropriately named “Right to Earn a Living Act.”

Yet the board of bar examiners concluded that Mr. Gluzman’s education in Argentina and at Vanderbilt was not “substantially equivalent” to a J.D.—discounting the right as somehow inapplicable and missing the significance of the Act as a restatement of longstanding Tennessee constitutional doctrine. Under the doctrine of constitutional avoidance, and out of respect for the importance of the underlying right itself, the “substantial equivalency” rule should be read with lenity.

Although Mr. Gluzman’s sterling educational qualifications are beyond reproach, if it is still unclear whether his education satisfies the state bar, the rule should be read to favor the liberty interest and permit his inclusion. Nor is his exclusion demonstrably necessary to protect the public; the tailored way of assessing Mr. Gluzman’s competency would be to simply allow him to take the exam and settle the matter once and for all. That process would at once follow clearly stated legislative priorities and the constitutional principles that gave rise to the Right to Earn a Living Act.

The Tennessee Supreme Court hears Gluzman v. Tennessee Board of Bar Examiners later this spring.

On Monday, the Washington Post dropped a bombshell, reporting that Donald Trump had shared highly classified “codeword” intelligence—provided by an ally on the condition that it not be more widely disseminated—with Russian officials during their meeting last week.  While administration officials initially issued fierce denials, national security advisor H.R. McMaster, who had himself blasted the story as “false” in a carefully-worded statement, effectively confirmed the key elements of the report at a press briefing Tuesday morning. While McMaster repeatedly insisted that Trump’s decision to share information had been “wholly appropriate,” his remarks (perhaps inadvertently) raised several additional grounds for concern.

First, let’s dispense with the obvious: Classification authority in the United States flows from the president, and so a president is legally entitled to declassify or disclose information as he sees fit, for any reason or no reason at all.  This is a case where that infamous Nixonism—”When the president does it, that means it is not illegal”—actually applies.  Nobody, as far as I can tell, is seriously disputing that.  It’s also true that presidents often choose, for strategic or diplomatic reasons, to share particular pieces of intelligence with foreign governments.  Yet this does not appear to have been a “routine” instance of such sharing, as McMaster sought to characterize it—not by a longshot.

Rather, as NYU law professor Ryan Goodman observes at the Just Security blog, any decision to share such sensitive information would normally be subject to a rigorous interagency process, allowing the originators of the intelligence to assess the equities implicated by disclosure and apprise the White House of the potential consequences.  In this case, McMaster confirmed, the decision appears to have been made on the fly during the course of the discussion—and so necessarily uninformed by any serious analysis of the costs and benefits.  Indeed, McMaster even attempted to allay any concerns that Trump might have compromised “sources and methods” by noting that Trump had not been briefed on the source of the intelligence.  Yet as intelligence officials so frequently remind us in other contexts, sources or methods can sometimes be reverse-engineered from the substance of intelligence. If Trump was not aware of the source, his decision to disclose cannot have factored in either that direct risk of exposure, or the related risk of damaging relations with an ally by sharing sensitive information without seeking permission. Even if he had not been briefed on the details, of course, information shared under such conditions should have been clearly marked  “NOFORN” to indicate that it should not be disseminated to foreign nationals, including allies.  

Subsequent reporting has identified the source of the intelligence as Israel.  This would normally be the most likely candidate, though it sounds slightly odd given the original Post story’s claim that the information had come from a country whose intelligence sharing arrangement with the U.S. was itself a tightly held secret.  Possibly this is attributable to an overstatement by the Post, though as a professional paranoid I feel obliged to flag the possibility that it represents an effort at damage control intended to provide cover to another country—Jordan, say—where close cooperation with the United States would be more domestically controversial.  (Both could be true, of course, if the information was synthesized from multiple sources—with one source emphasized to draw attention from the other.) Either way, circumventing the usual equities process under the circumstances seems doubly irresponsible, especially given that allies had already expressed skittishness about sharing sensitive information with this administration.  

It may well turn out that the substance of what Trump shared was not detailed enough to risk human intelligence sources, at least in isolation, or that it only confirmed information the Russians already had on their own.  But in the absence of meaningful internal review prior to disclosure, that would be a matter of luck.  What seemed “appropriate” to McMaster might seem like an unacceptable risk to analysts with a clearer sense of what could be derived from that information in combination with other data available to Russian intelligence—either about the extent of our information sharing with allies or about those allies’ own intelligence sources.  The point of interagency review is precisely that these things aren’t necessarily obvious on the basis of cursory reflection, even by someone as well informed as McMaster.  Thus, even if the information shared should ultimately prove innocuous—though at least some sources are supposedly claiming the reality is actually “worse than has been reported”—the fact that it would be disclosed, essentially, on a whim and without normal process, in violation of an agreement to the contrary, will inevitably (and justifiably) make allies more cautious about future cooperation.  

At the same time, this latest in a string of damaging leaks reflecting negatively on Trump, even if it originated from within the White House, seems certain to further strain the already fraught relationship between Trump and his own intelligence community.  That’s harmful in the short term, because of course one wants the president to be able to trust the agencies tasked with providing him with information, and the agencies to be able to keep the president fully informed without worrying that sensitive data will be whimsically disseminated.  It’s dangerous in the longer run because, as I worried in a previous post, it increases the risk that Trump, feeling besieged, will seek to clean house at the intelligence agencies, replacing the career professionals of the “deep state” with loyalists whose chief qualification is a willingness to serve Trump’s interests, and carry out his dictates, without question.  


“Why didn’t you run away?” It was this dreaded question, asked of victims of violent crime who chose to defend themselves and kill their attackers rather than turn tail and run to uncertain safety, that “stand your ground” laws were intended to address. We shouldn’t demand that ordinary people be Jason Bourne, constantly aware of the availability and potential risk of any exits to the rooms they’re in, even while under pressure, in order to claim self-defense. That’s why North Carolina passed its own “stand your ground” law in 2011: to prevent someone like Gyrell Lee, who defended himself and his cousin in good-faith reliance on his right to repel force with force, from being treated like a common criminal.

Lee had been celebrating New Year’s Eve at his cousin Jamiel Walker’s home. Several times throughout the night, known troublemaker Quinton Epps showed up with some friends and argued with Walker, becoming increasingly intoxicated and aggressive. At some point Lee, who had completed a concealed-carry class and was familiar with the legal rules surrounding gun use, retrieved his pistol from his car “just in case.”

Epps returned a final time, hurling verbal abuse at Walker in the street while Lee and others tried to de-escalate the situation. Suddenly, Walker punched Epps and Epps responded by grabbing the hood of Walker’s sweatshirt and shooting him in the stomach five times. Lee raised his own gun after the second shot, but didn’t fire out of fear of hitting his cousin. Once Walker was able to pull himself away—he would later be found dead from his wounds in a nearby yard—and Epps lifted his gun towards Lee, Lee fired eight times, killing Epps.

The judge at Lee’s murder trial instructed the jury on Lee’s general right of self-defense, but failed to inform them that a defendant accused of homicide has “no duty to retreat in a place where the defendant has a lawful right to be,” and is entitled to stand his ground. The judge also entirely failed to instruct the jury on Lee’s equal right to use deadly force in the defense of Walker. The jury, originally deadlocked, convicted Lee of second-degree murder.

The state court of appeals held—despite the fact that the prosecution relied heavily on the implication that Lee’s failure to retreat should be taken as evidence of his guilty mind—that those omissions did not rise to the level of “plain error” needed to overturn Lee’s conviction. The court reasoned that, because North Carolina’s no-duty-to-retreat law requires that the defendant be reasonable in the belief that deadly force is necessary to prevent death or serious bodily harm, and the jury had necessarily found Lee’s actions unreasonable when it voted to convict, the additional instruction was unnecessary. In doing so, it violated longstanding rules of statutory construction and rendered North Carolina’s law toothless.

The North Carolina Supreme Court took the case and Cato has now filed a brief in support of Lee, urging the court to overturn the lower court’s ruling. The right to bear arms for the defense of oneself and others, enshrined in both the federal and North Carolina constitutions, is a fundamental part of this nation’s republican experiment. Juries cannot be expected to rigorously uphold that right, however, if they aren’t properly informed by the courts of all relevant legal rights and duties.

Intentionally or otherwise, President Trump continues to make headlines, this time involving allegedly highly sensitive information on ISIS that he shared with senior Russian officials during an Oval Office visit. If, as the Washington Post has alleged, that the information was provided by a U.S. ally in the region and that Trump did not seek the ally’s clearance in advance to share the intelligence with the Russians, it represents potential collateral political damage with said ally. Today, National Security Advisor H.R. McMaster held a press conference clearly designed as a damage control operation, although by admitting that “the president wasn’t even aware of where this information came from” he only reinforced the image of Trump as impulsive and careless.

One thing that is not in question is Trump’s authority to share the data with the Russians. The real question is whether he should’ve done so. 

Recall that it was the Soviet KGB’s successor organization, the FSB, that gave the CIA and the FBI the tip that the Tsarnaev brothers were terrorist-in-the-making two years before the Boston Marathon Bombing. That episode was the exception to the rule and record of America’s dealings with Russian intelligence services, as one CIA veteran of Russian operations noted earlier this year. Trump has made no secret of the fact that he wants to increase counterterrorism cooperation between the United States and Russia, particularly against ISIS. Whether his off-the-cuff intelligence sharing foray with Russian Foreign Minister Lavrov and Russian Ambassador to the U.S. Kislyak was the right way to do it is highly debatable. That it has at least temporarily focused attention away from a genuine ongoing scandal–the “Russiagate” investigation and the timing of the firing of ousted FBI Director James Comey–is beyond dispute. Trump’s Oval Office antics have given the Russians unearned wins on both issues this week.

Senator Rand Paul has a column over at CNN, urging Attorney General Jeff Sessions to reconsider his recent memo to federal prosecutors that encourages them to seek serious charges and mandatory minimum sentences.  Here’s an excerpt:

The attorney general’s new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation’s drug epidemic for what it is – a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have.

Read the whole thing.  To put this latest move into some perspective, several points need to be kept in mind.  First, like his earlier crime-fighting memos, this is consistent with what Republican administrations do.  That is, they reverse the executive orders that the Democrats put in place.  Sessions is reversing the policies of Eric Holder and restoring the charging policies that Former Attorney General John Ashcroft had in place.  Second, media reports that Sessions is bringing back the drug war are exaggerated because, as Professor Doug Berman noted, the war never went away under Obama.  Third, Trump and Sessions do not “oversee” the American criminal justice system.  The criminal system is decentralized among the states.  The federal system has been growing but is around 10 percent of the overall system.  So while Sessions gets a lot of attention, most of the action quietly occurs at the state and local level.

That said, Sessions is definitely moving in the wrong direction.  He is a strong proponent of mandatory minimum sentences, which have the effect of transferring power from impartial judges to ambitious prosecutors.  And they are so rigid that they too often lead to injustice–especially in drug cases where the quantity of drugs can be the primary factor instead of a person’s culpability.  Low-level mules get severe sentences for example driving narcotics from one city to another.

Sessions also conflates drug enforcement with the violent crime that is the primary concern of most Americans.  He believes that more drug busts can have a real impact on violent crime.  He is badly mistaken about that.  When the police lock up a rapist or a mugger, that enhances public safety.  Drug busts have little impact.  The street dealers and mules are quickly replaced and the black market trade continues as before.   

Lately, Sessions has been making the observation that drug dealers have to resort to violence to resolve their disputes.  There is truth to that, but that has always been a part of the conservative/libertarian critique of the drug war policy.  During the days of alcohol prohibition, newspapers reported on the “beer wars” in the cities.  After prohibition ended, no beer wars.  We would see the violent crime rate decline if the drug war were to end. 

Senator Paul is right about the need for sentencing reform, but even modest steps in that direction are likely to be opposed by Trump and Sessions.  State and local leaders have to take the lead on criminal justice reform.

Hal Brands has published a long and thoughtful essay at War on the Rocks on the future of American Internationalism. Despite its length, or perhaps because of it, the piece is worthy of a careful read.

Echoing themes that I have discussed previously (e.g. here and here), Brands foresees two equally plausible scenarios: a return to the liberal international order (LIO) crafted and sustained by a bipartisan foreign policy elite since the end of World War II; or an enduring shift away from internationalism, a process decades-in-the-making, but hastened by Trump’s presidency.

Brands is cautiously optimistic that the former will eventually prevail, provided that U.S. leaders undertake a series of reforms reflecting new geopolitical and domestic political realities. Fearful that Trump’s isolationism and hyper-nationalism will prevail, I have argued for a third way. U.S. leaders should reiterate their commitment to economic openness and international engagement, but call on other wealthy nations to share in the burdens of maintaining it. And they should back up such rhetoric with actions, by renegotiating decades-long alliance relationships, and avoiding intervening militarily in disputes that do not engage vital U.S. security interests. 

Brands does shade the truth from time to time. For example, he claims that U.S. leaders “sought to sustain a global balance of power that favored America and its democratic allies, and to advance liberal concepts such as democracy and human rights.” A not-complete list of the U.S. government’s perilous partners over the past 70 years reminds us that Washington’s commitment to promoting democracy and human rights has been inconsistent, at best.

  • Chiang Kai-shek (Taiwan)
  • Syngman Rhee/Park Chung Hee/Chun Doo-Hwan (South Korea)
  • Ayub Khan/Zia-ul-Haq/Pervez Musharraf (Pakistan)
  • The House of Saud
  • The Shah of Iran
  • Hosni Mubarak/Abdel Fattah el-Sisi (Egypt)
  • Plus a handful (or more) of generals and strongmen in Latin America

And herein lies a deeper point: U.S. foreign policy has often been geared toward advancing U.S. national interests, or, more accurately, how U.S. leaders defined those interests. On the other hand, Washington has wrapped its actions in a veneer of altruism and disinterest, always professing fealty to nobler goals. In his often ham-fisted way, Donald Trump has said publicly what many Americans have always believed: the true object of U.S. foreign policy is to protect U.S. security. When the public grows skeptical that U.S. policy is actually delivering such benefits (e.g. after Vietnam and Iraq), it has pushed for a course correction.

Can Brands’ version of American internationalism square the circle? Can it provide the public what it wants, while allowing U.S. elites to do what they think America, and more importantly the world, needs?

I’m skeptical. Brands calls on U.S. leaders to do at least six things:

1. American leaders will need to aggressively defend U.S. interests and the global order while avoiding the costly quagmires that have left so many Americans disillusioned.
2. They will need to drive harder bargains on burden-sharing and trade.
3. They will need to ensure that the pursuit of an open and profitable trading system does not come at the expense of vulnerable populations at home.
4. They will need to devise ways of better protecting the country’s borders and ensuring homeland security without losing the dynamism and societal rejuvenation that immigration provides.
5. They will need to strengthen the social safety net for those who need it most while also pursuing the reforms necessary to keep those programs — and the U.S. government — solvent over time.
6. They will need to get back to first principles in explaining why America’s global engagement really matters — and what would happen if Washington ceased to play such a role — while also giving more Americans a sense that their foreign policy truly does put them first.

To this list, I would add a seventh:

7. Because maintaining U.S. primacy will cost even more money than the substantial amount that we already spend on the military, U.S. leaders will need to convince Americans that internationalism is worth paying for with higher taxes, lower domestic spending, or, most likely, a combination of both.

I am not aware of any American politician willing to step forward with such a program. And, until that happens, expect Trump’s anti-internationalism to prevail.


E-Verify is a government national identification system that employers currently use voluntarily to screen out unauthorized immigrant workers. Members of Congress want to make the program mandatory for all employers with the Legal Workforce Act, which has passed the House Judiciary Committee three times. This legislation would be the largest employer regulation in terms of scale in the history of the United States, applying to every single employer and every single worker in the country and also roping in several agencies to run it. 

The system has already proven remarkably ineffective at its intended purpose—keeping unauthorized workers away from jobs. In fact, in many cases, it does the opposite—keeping authorized workers away from employment. While many have focused on how making it mandatory would increase the number of these errors, E-Verify is already causing headaches and costing jobs for legal workers.  In fact, from 2006 to 2016, legal workers had about 580,000 jobs held up due to E-Verify errors, and of these, they lost roughly 130,000 jobs entirely due to E-Verify mistakes.

Here’s how E-Verify catches innocent people. The system checks information all workers must provide on their I-9 forms against the databases of either the Department of Homeland Security (DHS) for legal immigrants or the Social Security Administration (SSA) for U.S. citizens. If the system fails to verify this information, it will issue a “tentative nonconfirmation” (TNC). People who receive a TNC must challenge it within two weeks or it turns into a “final nonconfirmation” (FNC), and the employer must fire them.

Legal workers can receive an erroneous TNC for a variety of reasons. Employers may have put their information into the system incorrectly. This is especially common for hyphenated names or individuals with multiple last names. It can also happen if someone changes their name, but SSA or DHS has failed to update their entry in the database. Errors can also occur when SSA or DHS employees enter a person’s information into the database.

Whatever the case, the employee has an affirmative duty to fix the issue. They must formally contest the error. If they are a citizen, they need to physically visit a Social Security Administration office to figure out the problem. If they are a legal foreign worker, they need to go to DHS. This process can take months because the worker has no idea what the problem is. In 2012, it took more than 8 days to resolve a TNC for more than a third of all legal workers who received one.

Unfortunately, U.S. Citizenship and Immigration Services (USCIS) data fails to report in more detail how long these took to resolve, which could potentially have taken months. For workers who need to submit a Privacy Act request to obtain their records, it can take more than three months even to obtain a response, let alone fix the underlying problem. As the Table below highlights, from 2006 to 2016, legal workers had to overcome 450,039 tentative nonconfirmations. Under the Legal Workforce Act, employers could condition employment based on an E-Verify confirmation, meaning all of these workers would lose weeks or months of wages. If the job was temporary, they could lose it entirely.

Table: E-Verify Cases and Errors, 2006 to 2016


Total Cases TNC % Overcome TNCs Overcome Erroneous FNC % FNC Errors Total Error % Total Errors

































































































Sources: Total cases (2006-2014): U.S. Citizenship and Immigration Services, “E-Verify History and Milestones,” January 19, 2017. TNC share overcome (2011-2016): U.S. Citizenship and Immigration Services (USCIS), “E-Verify Program Statistics – Performance.” USCIS archived pages. E-Verify Erroneous TNC and FNC rates (2006-2010): Westat, “Evaluation of the Accuracy of E-Verify Findings,” July 2012. (Note FNC error rate in Westat expressed in terms of share of FNCs.)

But that’s not all. Some legal workers lose the opportunity for a job completely due to E-Verify.  Legal workers can receive a FNC that results in them being permanently fired for two reasons. The first is that the person decides not to bother challenging the TNC. This accounted for roughly 17 percent of all erroneous FNCs, according to a study commissioned by USCIS. The other much more common reason is that employers neglect to tell them that they received a TNC. This accounted for 83 percent of erroneous FNCs.

The USCIS-commissioned study provides the erroneous TNC rates since 2006, but only provides the erroneous FNC rate for 2009. As the Table shows, the TNC error rate has improved over time, so this estimate assumes that FNC accuracy improved at the same rate as TNC accuracy. If this held true, then nearly 130,000 legal workers were wrongfully issued TNCs and then subject to wrongful FNCs that likely cost them their jobs.

Proponents of the Legal Workforce Act tout E-Verify’s accuracy, but the fact that the program works as intended for 99.8 percent of workers is less impressive when it is imposed on such a large population. The 0.2 percent equaled more than 62,000 people in 2016 alone. If all employers—big and small, with or without many foreign-born workers—were required to use it, the errors would grow. Indeed, if every new hire went through the system in 2017, at least 120,000 legal workers would have been wrongfully ensnared in the system in that one year alone, implying more than a million errors per decade.

E-Verify is a big government regulation that fails to prevent illegal immigration and harms U.S. workers. A better plan to eliminate illegal immigration would be to make hiring foreign workers legal. Legalize the current unauthorized immigrants and create a large year-round guest worker program. Government regulation has failed time and time again. America should try the free market for a change.